Gujarat High Court
Chetnaben Jayrambhai Savaliya vs Saurashtra University on 2 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1062 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 12315 of 2004
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1062 of 2022
With
R/LETTERS PATENT APPEAL NO. 1063 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 17738 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022 In R/LETTERS PATENT
APPEAL NO. 1063 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 17738 of 2011
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CHETNABEN JAYRAMBHAI SAVALIYA
Versus
SAURASHTRA UNIVERSITY & ORS.
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Appearance:
MR GM JOSHI, SENIOR COUNSEL WITH MS MAMTA R VYAS(994) for the
Appellant(s) No. 1
MR AAKASH CHHAYA, AGP for the Respondent(s) No. 4
MR AR THACKER(888) for the Respondent(s) No. 1
MS AGNEYA B MANKAD(12768) for the Respondent(s) No. 2,3
MR SHALIN MEHTA, SENIOR COUNSEL WITH MS SHIKHA D
PANCHAL(10764) for the Respondent(s) No. 5
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 02/04/2025
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
BIREN VAISHNAV)
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1. These appeals have been filed by the appellants who
are the original petitioners. Challenge in these appeals is
to the common CAV judgement dated 04.05.2022 passed
by the learned Single Judge by which the learned Single
Judge dismissed the petitions filed by the petitioner -
common in both the petitions.
2. Letters Patent Appeal No. 1062 of 2022 arises out of
a petition being Special Civil Application No. 12315 of
2004. By way of the said petition, the petitioner had
prayed for setting aside the decision of the Saurashtra
University dated 12.06.2004 by which the representation
of the original petitioner was rejected in context of her
non-appointment as a full time lecturer on the post in
question.
2.1 Letters Patent Appeal No. 1063 of 2022 is preferred
challenging the judgement passed in Special Civil
Application No. 17738 of 2011 which was filed praying for
a writ of mandamus to quash and set aside the order of
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the Tribunal dated 04.10.2011 rejecting the review
application of the appellant - original petitioner.
3. Reiteration of facts is not necessary in light of the
same having been set out by the learned Single Judge to
which there can be no dispute. Paragraphs no. 3 to 3.15
of the judgement setting out the facts read as under:
"(3) The petitioner is serving as a part-timer
Lecturer. Though, it is her case that she
was selected for full-time Lecturer, but the
respondents have illegally appointed the
respondent No.5 on such post. The petitioner
is having degree of Bachelor of Arts (BA) in
Psychology. The petitioner cleared the said
examination with 1st Class securing 60%
marks. She was appointed as a part-timer
Lecturer in Psychology subject by the
respondent No.3, on 01.12.1992.
3.1) Thereafter, the respondents published an
advertisement for filling up the post of the
full-time Lecturer on 02.09.1993.
3.2) Pursuant to the said advertisement, the
applications. The selection Committee was
constituted, however no one was appointed
pursuant to the said advertisement &
interview, as it was held by the Selection
Committee that the respondent No.2 and 3 did
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not obtain any "no objection certificate" for making
such appointment for the teaching
staff. Accordingly, the respondent No.3 -
College requested the State Government to
issue "no objection certificate" for filling
up the post of teach staff. Thereafter, vide
order dated 06.07.1994, the commissioner of
Higher Education gave "No Objection
Certificate" in respect to the appointment
of the teaching staff.
3.3) Thereafter, a fresh advertisement was issued
by the respondent-Trust for which the
interviews were held on 29.05.1995. The
petitioner and the respondent No.5 appeared
in the said interview and in the final
result, the respondent was placed at serial
No.1 and the petitioner was placed at the
serial No.2 by the Selection Committee. The
list was not made available to the
petitioner, however, when the petitioner
learned about the selection of the
respondent No.5, the petitioner started
inquiry about the procedure followed by the
respondents with respect of the interview
held by the respondents was validly held and
there was no defect at all.
3.4) Being aggrieved by the said selection of the
respondent No.5, the petitioner filed an
application being Application No.59 of 1995
before the Gujarat Affiliated College
Service Tribunal at Ahmedabad under Section
8 of the Gujarat Affiliated Colleges
Services Tribunal Act. It appears that an
ad-interim relief was granted by the
Tribunal of maintaining status quo by the
order dated 22.02.1996. The respondent No.5
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made an application for joining in the said
proceedings, which was rejected by the
Tribunal.
3.5) Being aggrieved by the said order of the
Tribunal, the respondent No.5 approached
this Court by filing writ petition being
Special Civil Application No.892 of 1999,
which was allowed by this Court vide order
dated 05.04.1999 and the respondent No.5 was
allowed to join as party respondent in the
application being Application No.59 of 1995
filed by the petitioner.
3.6) By the judgment and order dated 14.02.2003,
the Tribunal rejected the application being
Application No.59 of 1995 filed by the
petitioner and the status quo order, as
granted earlier, was also vacated.
3.7) Being aggrieved, the petitioner challenged
the said judgment and order dated 14.02.2003
by filing a writ petition being Special
Civil Application No.2174 of 2003. This
Court rejected the said petition vide order
dated 07.03.2003, with a liberty reserved in
favour of the petitioner to challenge the
appointment of the respondent No.5
appointing her on the post of full-time
Lecturer.
3.8) The petitioner, thereafter filed a writ
petition being Special Civil Application
No.2705 of 2003 before this Court
challenging the selection process and the
selection of respondent No.5 to the post of
full-time Lecturer, however the petitioner
withdrew the said petition to make
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representation to the respondent-University.
3.9) Accordingly, the petitioner made a
representation to the respondent-University.
It appears that total four numbers of
representations made by the petitioner
before the respondent University.
3.10)The petitioner, thereafter again, challenged
the selection of the respondent No.5 as
full-time Lecturer by filing a writ petition
being Special Civil Application No.7413 of
2004, which was dismissed
in limine by this
Court on the ground of inordinate delay as
well as on the ground of
res judicata.
3.11)Being aggrieved, the petitioner filed a
Letters Patent Appeal No.1723 of 2004 before
the Division Bench, challenging the order
passed by the Co-ordinate Bench. The said
Letters Patent Appeal was withdrawn by the
petitioner and the same was disposed of vide
order dated 14.09.2004 reserving liberty in
favour of the petitioner to challenge the
decision on the representation filed before
the University.
3.12)The petitioner, thereafter filed the
captioned writ petition being Special Civil
Application No.12315 of 2004, seeking
direction on the University to decide the
representation dated 19.05.2008, during the
pendency of the petition, it appears that
the respondent University decided the
representation by the order dated
12.06.2004. Accordingly, the petitioner
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amended the writ petition and has challenged
the decision dated 12.06.2004.
3.13)In Special Civil Application No.17738 of
22011, the petitioner has challenged the
order dated 04.10.2011 passed by the
Tribunal in Restoration Application No.1 of
2011 preferred by the petitioner. The said
Restoration Application No.1 of 2011 was
filed by the petitioner by taking clue from
the order dated 09.12.2010 passed by the
Division Bench in Letters Patent Appeal
No.2520 of 2010.
3.14)The Tribunal, accordingly, rejected the
Restoration Application No.01 of 2011, which
is challenged in the captioned writ petition
being Special Civil Application No.12315 of
2004.
3.15)Before the Division Bench passed the order
passed dated 09.12.2010 in Letters Patent
Appeal No.2520 of 2010, the petitioner filed
Misc. Civil Application No.2386 of 2010 in
Special Civil Application No.2174 of 2003
against the order dated 07.03.2003 rejecting
the writ petition filed by the petitioner.
Thus, the review application was filed after
a period of 7 years, however, it is
contended that subsequently, when the
petitioner was supplied the information
under the Right to Information Act, such
review application was necessitated as the
order before the Tribunal was obtained on
fraud or misrepresentation by the
respondents.
4. Mr. G.M. Joshi, learned Senior Advocate appearing
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with Ms. Mamta Vyas, learned advocate for the appellant
made the following submissions:
(A) That the observations made by the learned
Single Judge before proceeding to decide the issue
that the case of the appellant was a classic case
where the litigant keeps on spinning the litigation
wheels of fortune until he/she hits the jackpot is an
observation which is misconceived. From the very
inception, it indicates that the learned Single Judge
misdirected himself in approaching the issue and the
consequential findings therefore are bad.
(B) That the appellant was initially appointed
pursuant to an interview held on 06.03.1994.
Reading the communication dated 13.05.2003,
addressed by the Saurashtra University to the
respondent college, he would submit that it was
apparently very clear from the communication that
the University too was of the opinion that since the
college was a non-grantable college, no NOC was
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needed for which the interviews were held on
06.03.1994. The cancellation of the selection of the
appellant and thereafter holding of a second
interview on 29.05.1995 wherein the respondent no.
5 was selected, even according to the University was
misplaced. Only on an oral instruction of a
Government Official that the selection was bad as no
NOC was required, was misconceived. Even today
neither the State Government nor the college has,
pursuant to the letter dated 13.05.2003, made their
stand clear on the clarification sought by the
University i.e. whether the selection of the appellant
made pursuant to the interviews held on 06.03.1994
be set aside and a selection been undertaken by a
subsequent interview by which the respondent no. 5
was selected was valid.
(C) That reading the order of the learned Single
Judge would indicate that the learned Single Judge
has misconceived himself by tracing the history of
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the litigation carried out by the appellant which
were nothing but litigation pursued in good faith. At
all stages, an endeavour was made by the appellant
to substantiate her right that she was working as a
full time lecturer in Psychology subject. The Special
Civil Applications and the Letters Patent Appeals
filed from time to time though may have indicated
that the Tribunal's view that the appellant had failed
to establish her right as a full time lecturer may
have closed the issue, however, it was very apparent
that the question of whether the selection of
respondent no. 5 should have been undertaken by
virtue of an interview process of 29.05.1995 when
infact this first selection pursuant to which the
appellant was appointed and which required no NOC
was never decided. The learned Single Judge
therefore was unfortunately enamoured by the
observation that the petitioner was trying to litigate
to hit a jackpot. He would submit that the
observation of the learned Single Judge that the
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appellant had very cleverly moulded the issue in
Special Civil Application No. 2174 of 2003 was a
statement and an opinion particularly branding the
appellant to have surreptitiously cleared through the
process of law that the learned Single Judge could
not have rendered and the appeal therefore deserves
to be allowed.
(D) Having worked as a full time lecturer for over
so many years, now that the respondent no. 5 has
been declared as surplus and moved out and when it
is an undisputed fact that no NOC was necessary for
appointing the appellant when she had been
selected pursuant to an advertisement and interview
on 06.03.1994 when admittedly the college was
unaided, the appellant ought to have been continued
in service.
5. Mr. Shalin Mehta, learned Senior Advocate
appearing with Ms. Shikha Panchal, learned advocate for
private respondent no. 5 would submit as under:
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(a) That there can be no fault finding with the
judgement and order of the learned Single Judge. In
fact it has come on record by setting out the
sequence of the litigation that at the first instance
the only challenge before the Tribunal was to the
appellant not being a full time lecturer.
Subsequently, when the present respondent no. 5
was made a party to the Tribunal, the Tribunal
upheld the selection of respondent no. 5.
(b) That the challenge to the Tribunal's order failed
inasmuch as the petition filed against the Tribunal's
order dated 14.02.2003 was dismissed on
07.03.2003. Though, the court while dismissing the
petition had observed that since the Tribunal had no
jurisdiction to decide the question of appointment
and a right was reserved for the appellant to
challenge the same, no such challenge was made.
Inviting our attention to the order dated 07.03.2003,
Mr. Mehta would then submit that immediately
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within a week thereafter in Special Civil Application
No. 2705 of 2003, in a petition seeking a relief of
mandamus, the only direction that the appellant
obtained was that a representation if made be
decided by the University. Representations made
from time to time were not being decided as a result
of which Special Civil Application No. 7413 of 2004
was filed. That petition was dismissed by an order
dated 05.07.2004 on the ground that the challenge
to the respondent no. 5's selection which was made
in the year 1995 was challenged after an inordinate
delay of 8 years and therefore the petition was
rightly dismissed. On an appeal being filed, the
Division Bench of this court only clarified that it
would be open for the appellant to file a petition
seeking a writ of mandamus to get his
representation decided. The observation of the
Division Bench was that in the event a decision is
taken, it will be open for the appellant to file a fresh
petition. In other words, at no stage was the
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selection of respondent no. 5 a matter of challenge
(c) That even otherwise, once the Tribunal had
dismissed the application of the appellant on
14.02.2003, which judgement was affirmed by this
court in Special Civil Application No. 2174 of 2003
on 07.03.2003, ingeniously within a week thereafter
the challenge to the selection was dismissed under
the guise of making a representation and then
calling for a review which was withdrawn on
24.09.2010. The appellant approached the Tribunal
and the Tribunal rightly rejected the review
application holding that the review is not
maintainable. The learned Single Judge therefore
did not commit any error.
6. Mr. Akash Chhaya, learned Assistant Government
Pleader and Mr. Shivang Thacker, learned advocate
appearing for the University would support the order
passed by the learned Single Judge.
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7. We have perused the conclusions arrived at by the
learned Single Judge. He has traced the proceedings
filed by the appellant in various fora and which he has
listed in paragraph no. 8 of the judgement under
challenge which reads as under:
"(8) The petitioner has filed following
proceedings challenging the selection of the
respondent no.5.
1) Application No.59 of 1995(Tribunal),
which is rejected on 14.02.2003;
2) Special Civil Application No.2174 of
2003, which is rejected on 07.03.2003;
3) Special Civil Application No.2705 of
2003, which is withdrawn on 13.03.2003;
4) Special Civil Application No.7413 of
2004, which is dismissed on 05.07.2004;
5) Letters Patent Appeal No.1723 of 2004,
which is dismissed on 14.09.2003;
6) Misc. Civil Application No.2386 of 2010,
which is rejected on 29.09.2010;
7) Letters Patent Appeal No.2520 of 2010,
which is dismissed on 09.12.2010;
8) Restoration Application No.1 of 2011 in
Application No.59 of 1995(Tribunal); which
is rejected on 04.10.2011;
9) and the present writ petitions."
8. Having independently assessed the reasonings, what
we find is as under:
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(i) The appellant had approached the Tribunal by filing
Application No. 59 of 1995. It was her case that she had
been selected as a lecturer in Psychology on a part-time
basis and thereafter on an advertisement for the post of
full-time lecturer and an interview held on 06.03.1994 by
a properly constituted committee, she was appointed as a
full-time lecturer. It was her case before the Tribunal
that the subsequent interview held on 29.05.1995 was
unnecessary and the appointment of respondent no. 5
pursuant to the said interview was out of animosity.
(ii) Perusal of the original application before the
Tribunal would indicate that she candidly admitted that
she participated in the selection process and only when
she found that somebody else was to be appointed and
she apprehended her termination, she approached the
Tribunal. The prayer before the Tribunal was to direct
the opponents to protect her right as full-time lecturer
and set aside the second advertisement and interview
held on 29.05.1995. The stand of the college before the
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Tribunal was that the NOC pursuant to which the
appellant was appointed was obtained only after the
interview and therefore her selection was bad. From the
proceedings, we note that the Tribunal while deciding the
application vide judgement dated 14.02.2003 records that
initially the respondent no. 5 was not joined as a party.
When she made an application for joining party, the same
was rejected and only after she successfully obtained a
relief in the High Court, the respondent no. 5 was joined
as a party to the Tribunal's proceedings. The Tribunal
then heard the matter and specifically opined that there
is nothing on record to suggest that the appellant was
appointed as a full-time lecturer after due process and
the application was dismissed.
(iii) Special Civil Application No. 2174 of 2003 was filed
challenging the legality of the order of the Tribunal.
While dismissing the petition and affirming the order of
the Tribunal, this court in the order dated 07.03.2003
observed that in case the Tribunal was of the opinion that
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it had no jurisdiction it was open for the petitioner to
challenge the action of recruitment in accordance with
law. The court also opined that the Tribunal had no
jurisdiction to examine the aspect of selection and it was
open for the petitioner to challenge the appointment of
respondent no. 5.
(iv) It is intriguing to note that after having failed to
seek a relief against the order of the Tribunal which
closed the doors of the appellant in the context of her
right to establish that she was a full-time lecturer,
curiously within a week thereafter on 13.03.2003, in
Special Civil Application No. 2705 of 2003, which was a
petition preferred challenging the interview and selection
of 29.05.1995, that petition was withdrawn with a view to
make a representation to the University. Representations
were made on the dates as set out by the learned Single
Judge on 19.03.2003, 13.08.2003, 08.03.2004 and
21.04.2004.
(v) Special Civil Application No. 7413 of 2004 was filed
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again challenging the selection of respondent no. 5 as a
full-time lecturer pursuant to the interview of 29.05.1995.
It needs to be noted here that having withdrawn the
earlier petition only with a view to make a representation,
obviously, a subsequent petition within one year, after
having obtained only orders to make representations was
ingenious which has so been observed by the learned
Single Judge. The petition was dismissed on the ground of
inordinate delay in challenging the selection after 8
years.
(vi) On an appeal being filed, the Division Bench only
clarified that on the observations made by the learned
Single Judge on the question of res judicata, such
observation was misconceived as what the appellant had
sought was only a prayer seeking a writ of mandamus for
a direction to decide the representation and only that
permission was granted. In the meantime, by the
impugned order, the representation was decided which
was a subject matter of Special Civil Application No.
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12315 of 2004. A subsequent petition in the year 2011
which is also a part of this judgement challenged the
rejection of the review of the order of 2003. That review
was rejected by the Tribunal.
9. Obviously, therefore, the appellant kept approbating
and reprobating and resorted to these litigations
subsequently which were a part of the decision making
process of the learned Single Judge. It is in the
background of these litigations that the learned Single
Judge in the conclusion so made passed these
observations. The conclusion, which quotes the earlier
orders passed by this court, when perused indicate that
no fault can be found from the reasonings of the learned
Single Judge. Paragraphs no. 11 to 24 of the order of the
learned Single Judge read as under:
"(11) By the judgment and order dated 14.02.2003,
the Tribunal rejected the appeal by
observing that the petitioner was unable to
point out any appointment order by which she
was appointed as a full-time Lecturer after
following due process of law. The Tribunal
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has observed that in the subsequent
selection process, the respondent No.5 was
selected and placed at serial No.1 by the
Selection Committee and the petitioner was
selected at serial No.2. From the entire
records and from both the writ petitions,
the petitioner has miserably failed to show
any order, by which, she was appointed as a
full-time Lecturer and it is admitted fact
that pursuant to the interview which was
held on 29.05.1995, the petitioner was
placed at serial No.2, whereas the
respondent no.5 was placed at serial No.1 in
the select list and accordingly, respondent
No.5 was appointed to the post of full-time
Lecturer in Psychology subject, which was
also approved by the competent authority.
(12) The judgment and order dated 14.02.2003
rejecting the appeal of the petitioner was
challenged by the petitioner by filing
Special Civil Application No.2174 of 2003.
Vide order dated 07.03.2003, the writ
petition filed by the petitioner was
rejected in the order dated 07.03.2003, by
recording the statement of the learned
advocate appearing for the which reads as
under.
"2.xxxxx So far as the decision of the tribunal
for non-granting of pay-scale is concerned
Mr.Mangukia fairly submitted that since there
is no order for appointment as full time
lecturer the petitioner is not in a position to
show any material of documentary evidence
to satisfy that the petitioner is working as full
time lecturer."
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(13) In the paragraph No.4, the Coordinate Bench
has observed thus:
"4. Having considered the above, and on perusal
of the order passed by the tribunal, it is clear
that the tribunal has rejected the application of
the petitioner on the ground that the petitioner
has not been able to show any appointment order
as full time lecturer and therefore in my view
the tribunal is right in rejecting the
application made by the petitioner for grant of
payscale of full time lecturer. It can not be
said that the tribunal has committed any
jurisdictional error while rejecting the claim of
the petitioner as full time lecturer with effect
from 1.7.93. So far as challenge to recruitment
or appointment pursuant to the advertisement is
concerned I am primafacie of the view that the
tribunal had no jurisdiction to examine the same
aspect and rightly the tribunal has also
dismissed that part of the application by not
examining the contentions. Hence, I find that no
case is made out for interference of this court
and hence the petition is rejected with
clarification that it will be open to the
petitioner to challenge the appointment pursuant
to the advertisement for recruitment and
appointment of lecturer in accordance with law."
(14) Thus, the Coordinate Bench has observed that
the Tribunal was justified in rejecting the
application of the petitioner on the ground
that the petitioner was unable to show any
appointment order as she was working as
full-time Lecturer. However, the Coordinate
Bench has dismissed the writ petition filed
by the petitioner with a clarification that
it will be open to the petitioner to
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challenge the appointment of the respondent
No.5, pursuant to the advertisement for
recruitment for the post of Lecturer, in
accordance with law.
(15) Instead of challenging the appointment of
the respondent no.5, before the Tribunal,
the petitioner directly filed the writ
petition being Special Civil Application
No.2705 of 2003 which was disposed of as
withdrawn to make a representation vide
order dated 13.03.2003. The same reads as
under.
"4. Having considered the above, I am of the
view all these contentions can only be examined
by the University while considering the question
of granting approval and normally not by this
court while exercising power under Article 226
of the Constitution of India.
5. Mr.Mangukia at this stage seeks permission to
withdraw the petition with a view to make proper
representation before the University. Without
expressing any opinion further merits permission
is granted. Petition is disposed of as
withdrawn."
(16) Thereafter, the petitioner made
representations on 19.03.2003, 13.05.2003,
13.08.2003 and 08.03.2004.
(17) It appears that since there was no reply to
her representations, the petitioner filed
Special Civil Application No.7413 of 2004
challenging the selection of Respondent
no.5. The said petition was dismissed by the
order dated 05.07.2004 by observing thus:-
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"The petition deserves to be dismissed on the
ground of inordinate delay in as much as the
process of interview held on 29th May, 1995 has
been challenged before this Court first in the
year 2003 and now in the year 2004. The
inordinate delay of eight years has not been
explained. Evidently, so long as the
petitioner's service was protected pending her
application before the Tribunal, the petitioner
did not consider it necessary to challenge the
selection of the respondent No.5. Now that the
petitioner has failed before the Tribunal and
before this Court, she has challenged the
selection of the respondent No.5. This Court in
exercise of extraordinary jurisdiction under
Article 226 of the Constitution of India shall
not examine the correctness of selection made as
far back as in the year 1995.
Further, the Special Civil Application
No.2705/2003 was withdrawn by the petitioner
unconditionally. No liberty was reserved to the
petitioner to file fresh petition in the same
subject matter. The Hon'ble Supreme Court and
this Court have time and again held that "filing
of fresh writ petition in the same subject
matter after withdrawing the first writ petition
without liberty to file fresh petition is
opposed to the public policy and such second
writ petition is barred being against the public
policy" (reference can be had to the judgment of
the Hon'ble Supreme Court in the matter of
Sarguja Transport Service v/s. State Transport
Appellate Tribunal, Gwalior and others [AIR 1987
SC 88] and of this Court in the matters of
Natwar Textile Processors Pvt. Ltd. and another
v/s. Union of India and others [31(1) GLR 338]
and of Bhagwandas D.Tandel v/s. S.N.Sinha,
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Director General of Police and others [37(1) GLR
782]). The petition is dismissed in limine."
(18) The petition was dismissed
in limine on the ground of inordinate delay in
challenging the selection process after 8 years. This
Court has further observed that the writ
petition being Special Civil Application
No.2705 of 2003, which was filed by the
petitioner and the same was withdrawn
unconditionally and no liberty was reserved
to the petitioner to file fresh petition in
the same subject matter and while placing
reliance on the judgment of the Supreme
Court, the writ petition was dismissed.
(19) The petitioner thereafter filed the Letters
Patent Appeal No.1723 of 2004 challenging
the aforesaid order dated 13.03.2003. The
same was also dismissed. While rejecting the
LPA vide order dated 14.09.2004, the
Division Bench, disposed of the LPA as
withdrawn by observing thus :-
"4. Upon perusal of the papers, we find that in
all the three petitions the prayer which the
appellant desires to make in the new petition,
was not made. In our opinion, the question of
res judicata cannot arise if a petition with
such a prayer is filed by the appellant, because
till today respondent No 4 University has not
taken any final decision on the representation.
If no final decision has been taken so far, the
question of challenging the same has not arisen
so far.
5. In the aforesaid circumstances, with
permission to file a petition praying for a
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mandamus against respondent No. 4 University,
learned advocate Shri Mangukiya seeks permission
to withdraw this appeal. The appellant is
permitted to withdraw the appeal so as to file a
fresh petition with such a prayer.
6. If respondent No. 4 University has already
taken a decision on the representation, but the
same has not been communicated to the appellant,
needless to say that it would be open to the
appellant to file a petition challenging the
decision, which might have been rendered by
respondent No. 4 University, which has not been
communicated to the appellant so far.
The appeal stands disposed of as withdrawn."
(20) Thus, the Letters Patent Appeal was
withdrawn with a view to file a fresh
petition challenging the decision of the
respondent-University taken on the
representation by filing a writ petition.
The Division Bench has disposed of the writ
petition by observing that a question of
res judicata will not arise, if the prayer with
regard to deciding of his representation was
not made.
(21) It is shocking to note that, the petitioner
preferred Misc. Civil Application No.2386 of
2010 after more than a period of 7 years
seeking review of the order dated 07.03.2003
passed in Special Civil Application No.2174
of 2003 by which his initial challenge to
the Tribunal judgement rejecting her appeal
no.59 of 1995, was rejected. Her review
application was was rejected vide order
dated 24.09.2010.
(22) The petitioner filed a Letters Patent Appeal
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No.2520 of 2010 against the order dated
24.09.2010 rejecting the Review Application
No.2836 of 2010 vide order dated 09.12.2010.
The Division Bench, after hearing learned
advocate Mr.Mangukiya passed an
ex-parte order and dismissed the appeal with a
liberty to make appropriate application
before the Tribunal. Before the Division
Bench, it was contested that the order
passed by the Tribunal and confirmed by this
Court in Special Civil Application No.2174
of 2003 vide order dated 07.03.2003 was
obtained by fraud. The Division Bench, after
reposing faith in the statement made by the
learned advocate appearing for the
petitioner, dismissed the LPA, vide order
dated 09.12.2010 however since a liberty was
reserved to file an application before the
Tribunal and it was clarified that the
order dated 07.03.2003 passed by the Co-
ordinate Bench in Special Civil Application
No.2174 of 2003 shall not come in the way of
the present petitioner in making application
before the Tribunal. The Division Bench in
the order dated 09.12.2010 has observed
thus :-
"5. After discussion at the bar of the ratio of
aforesaid judgments, it was clear and fairly
conceded that the alleged fraud or
misrepresentation was allegedly committed before
the Tribunal and not before the High Court when
the order dated 7/3/2003, as aforesaid, was made.
It was also culled out from the observations of
the Apex Court that in case fraud were
established, the principle of res judicata should
not come in the way of the aggrieved party. Under
such circumstances, the appellant was required to
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approach the Tribunal and not apply for recalling
the order based on the appellant's own statement
and the present appeal preferred from the
impugned order was not required to be
entertained.
6. Therefore, the appeal as well as the civil
application are dismissed subject to the
observation that the appellant shall be at
liberty to make appropriate application before
the Tribunal concerned, which may entertain such
application in accordance with law. It is
clarified that we have not expressed any opinion
about the allegations made and contentions
raised by the appellant before us, nor are we
expressing any opinion about the advisability or
maintainability of the application, which the
appellant may file before the Tribunal. However,
subject to the above observations, we further
clarify that the order dated 7/3/2003 of Ld.
Single Judge in Special Civil Application No.
2174 of 2003 shall not come in the way of the
appellant in making an application before the
Tribunal, as aforesaid. D S Permitted."
(23) Taking clue from the
ex parte order passed by the Division Bench, the
petitioner filed a Restoration Application No.1 of 2011 in
Application No.59 of 1995 which was rejected
and dismissed by the Tribunal vide order
dated 14.02.2003. The said application was
also dismissed vide order dated 04.10.2011.
Thus, by obtaining such order and despite
the rejection of the writ petition being
Special Civil Application No.2174 of 2003,
withdrawal of special civil application
no.2705 of 2003, the petitioner ultimate
succeeded in getting the order of filing a
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review/restoration application on the
judgment dated 14.02.2003 rejecting the
Application No.59 of 1995, after a period of
almost 10 years. It is a very interesting to
note that in all the aforementioned
proceedings, the judgment dated 14.02.2003
rejecting the Application No.59 of 1995 has
not been disturbed in any manner.
Accordingly, the petitioner's restoration
application No.1 of 2011 has been rejected
by the Tribunal vide order dated 04.10.2011
which is challenged in the captioned writ
petition being Special Civil Application
No.17738 of 2011. The application was
dismissed with costs of Rs.5,000/-. Though,
the application is named and styled as
restoration application, however the
Tribunal has treated it as a review
application and has considered the entire
record and reconsidered the submissions
advanced by the petitioner and after
perusing the entire record, ultimately did
not think it fit to entertain the review
application or restoration application and
to interfere with the judgment and order
dated 14.02.2003. The Tribunal has
considered the material which was produced
before it and again it is reiterated and
reaffirmed that the petitioner has not
produced anything on record to show that she
was appointed as a full time Lecturer.
(24) The Tribunal has observed that the
petitioner was paid an amount of Rs.1100/-
which was fixed for part-time Lecturer and
also whatever additional work was given to
her, she was accordingly paid. By the
documents which are produced on record in
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the writ petition, the petitioner has
endeavoured to show that she has taken 21
lectures which have been taken by her as a
full-time Lecturer, however she has been
assigned the work of full-time Lecturer
since her initial appointment was a part
time Lecturer and in all these proceedings
which are noted hereinabove, she is unable
to show that she was appointed as full time
Lecturer. Even if such material was produced
before the Tribunal, the same will have no
impact on the selection of the Respondent
no.5 as a full-time lecturer. Merely
assigning the work of a full-time Lecturer
to the petitioner will not make her eligible
to be appointed as a full time Lecturer. On
the contrary, the Selection Committee has
appointed the respondent no.5 by following
the appropriate selection procedure, as a
full-time Lecturer, but the respondents are
unable to effectively take her duties as
full-time Lecturer because of the litigation
filed by the petitioner and the respondent
no.5 is declared surplus."
10. We agree with the submission made by the learned
senior counsel Shri Shalin Mehta appearing for
respondent no. 5 that in an intra court appeal, the
position is well settled that unless the court comes to the
conclusion that the judgement of the learned Single Judge
is perverse and suffers from an error apparent in law, the
appellate court cannot delve into extensive reappreciation
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of evidence and overturn the judgement. He placed
reliance on a decision in the case of Airports Authority
Of India vs. Pradip Kumar Banerjee rendered in
Civil Appeal No. 8414 of 2017. Paragraphs no. 36-37
read as under:
"36. The law relating to the exercise of intra-Court
jurisdiction is crystallised by this Court in the case
of Management of Narendra & Company Private
Limited v. Workmen of Narendra & Company,
wherein it was held as under:
"5. Once the learned Single Judge having seen
the records had come to the conclusion that
the industry was not functioning after January
1995, there is no justification in entering a
different finding without any further material
before the Division Bench. The Appellate
Bench ought to have noticed that the
statement of MW 3 is itself part of the evidence
before the Labour Court. Be that as it may,
in an intra-court appeal, on a finding of
fact, unless the Appellate Bench reaches a
conclusion that the finding of the Single
Bench is perverse, it shall not disturb the
same. Merely because another view or a
better view is possible, there should be no
interference with or disturbance of the
order passed by the Single Judge, unless
both sides agree for a fairer approach on
relief."
(emphasis supplied)
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37. The position is, thus, settled that in an intra-
court writ appeal, the Appellate Court must
restrain itself and the interference into the
judgment passed by the learned Single Judge is
permissible only if the judgment of the learned
Single Judge is perverse or suffers from an error
apparent in law. However, the Division Bench, in
the present case, failed to record any such finding
and rather, proceeded to delve into extensive re-
appreciation of evidence to overturn the judgment
of the learned Single Judge."
11. In light of the aforesaid, both the appeals are
dismissed. Connected civil applications stand disposed
of.
(BIREN VAISHNAV,ACJ)
(HEMANT M. PRACHCHHAK,J)
DIVYA
