Karnataka High Court

Bangalore University vs Mari Gowda J H on 31 January, 2022

Bench: S.G.Pandit

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 31ST DAY OF JANUARY, 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE S.G. PANDIT

           REVIEW PETITION NO 123/2021 IN
     WRIT PETITION NOS. 11340-11341/2014 (S-RES)

BETWEEN:

BANGALORE UNIVERSITY,
JNANA BHARATHI,
BENGALURU-560 056,
REP. BY ITS REGISTRAR.
                                         -        PETITIONER
(BY SRI. N.K. RAMESH, ADVOCATE)

AND:

1.     MARI GOWDA J.H S/O HUTCHAIAH,
       AGED 73 YEARS, R/A NO. 57, SHREE NILAYA,
       2ND MAIN ROAD, EKADANTHANAGAR,
       HEROHALLI, BENGALURU-560 091.

2.     NAGARAJ B.M S/O LATE MUNIYAPPA,
       AGED 73 YEARS, R/O NO. 357, 11TH MAIN,
       1ST BLOCK, 3RD STAGE, WEST OF CHORD ROAD,
       MANJUNATHA NAGAR, BENGALURU-560 010.

3.    UNIVERSITY VISVESVARAYA COLLEGE
      OF ENGINEERING, KR CIRCLE, BENGALURU-560 001
      REPRESENTED BY ITS PRINCIPAL
                                     -    RESPONDENTS
(BY SMT. VAISHALI HEGDE, ADVOCATE FOR R1 & R2,
NOTICE TO R3 IS SERVED)
                                 2



     THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 R/W SECTION 151 OF CPC PRAYING TO REVIEW THE
ORDER DATED 11.06.2019 PASSED IN W.P. NO. 11340-
11341/2014 & ETC.

     THIS REVIEW PETITION HAVING BEEN HEARD AND
RESERVED FOR 'ORDERS' ON 18.12.2021 COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY AT DHARWAD
BENCH, THE COURT DELIVERED THE FOLLOWING:

                           ORDER

The respondent No.1 in W.P. Nos. 11340-

11341/2014 is before this Court under Order 47 Rule 1 r/w

Sec. 114 of CPC praying to review the order dated

11.06.2019 passed in W.P. Nos. 11340-11341/2014 and to

hear the petitions on merits.

2. Parties to the present review petition would be

referred to as per their ranking in the writ petitions.

3. The review petitioner was respondent No.1 and the

respondents No.1 and 2 herein were petitioners in W.P.

Nos. 11340-11341/2014.

4. The petitioners were working as Instructors in the

respondent No.3-College and were before this Court in

W.P. Nos. 11340-11341/2014 praying for a direction to the

respondent-University to extend the benefit of All India

Council for Technical Education pay scales (for short

'AICTE pay scales') and for consequential benefits. When

the matter was listed in 'B' group on 30.05.2019, learned

counsel for the petitioners submitted that the issue in the

writ petition is identical to the issue in W.P. No.

18069/2006 which was disposed of 21.07.2011. On the

said submission, learned counsel for the University was

directed to verify whether the matter is covered by the

said decision. Learned counsel for the respondent-

University, on instructions submitted that the issue is

identical to that of W.P. No. 18069/2006. Accordingly,

W.P. Nos. 11340-11341/2014 stood disposed of in terms

of W.P. No. 18069/2006. Praying to review the said order

dated 11.06.2019, the respondent-University is before this

Court in this review petition.

5. Heard learned counsel Sri N.K. Ramesh for the

respondent-University and Smt. Vaishali Hegde, learned

counsel for the petitioners in W.P. Nos. 11340-11341/2014

and perused the entire review petition papers.

6. Learned counsel for the petitioner would submit that

the first petitioner in the writ petition possessed the

qualification of SSLC and the second petitioner possessed

qualification of fail in 7th standard. They were initially

appointed on 08.11.1965 and 12.10.1965 as Helpers on

temporary basis. They were regularized as Helpers on

08.01.1965 and 13.10.1965 respectively. Both the

petitioners were promoted as Mechanic under University

order dated 28.01.1980 with effect from 30.10.1979.

Further, they were promoted as Instructors with effect

from 02.09.1988.

7. It is submitted that the qualification possessed by

the petitioners, i.e., SSLC and fail in 7th standard, would

not entitle them for extension of AICTE pay scales. The

petitioner in W.P. No. 18069/2006 was a Foreman and he

possessed qualification of Diploma in Mechanical

Engineering. The case of the petitioners were not similar

or identical to that of the petitioner in W.P. No.

18069/2006. Therefore, he submits that the order

requires to be reviewed.

8. Learned counsel would also contend that the

University without verifying the facts and educational

qualification of the petitioners instructed the counsel that

the case of the petitioners as well as petitioner in W.P. No.

18069/2006 is identical which is not a fact. He further

submits that the person who instructed the counsel is not

in service and is stated to have died. He would further

contend that concession of the counsel or Lawyer would

not be binding on the party if it is not authorized. Further,

the learned counsel would submit that the order under

review is not passed on merits and it is passed only on

concession of the learned counsel appearing for the

University. Petitioners have also not disclosed their

educational qualification in the writ petition so as to

determine their entitlement to the AICTE pay scales.

9. It is his further submission that the AICTE norms

require minimum of bachelor's degree in Engineering for

entitlement for extension of AICTE pay scales. Referring to

Order 47 Rule 1 CPC learned counsel would submit that

the Court would get jurisdiction to review the order when

there is discovery of important matter or evidence which

could not be produced even after due diligence at the time

of hearing and on account of some mistake apparent on

the face of the record, apart from any other sufficient

reason.

10. Learned counsel would further submit that the

person who is not qualified would not get any right to seek

extension of AICTE pay scales. If persons who are not

qualified are extended the AICTE pay scales, it would be

against the norms of AICTE as well as it would be financial

burden on the University. Thus he prays for review of the

order.

11. Per contra, learned counsel for the respondents No.1

and 2 Smt. Vaishali Hegde contends that the review

petition itself is not maintainable, since the writ petition is

disposed of on the submission made by the learned

counsel appearing for the respondent-University, on

instructions. When an order is passed on the submission

of the learned counsel for the respondent-University it is

not permissible for the University to say otherwise to seek

review. Apart from the above objection with regard to

maintainability, learned counsel would submit that there is

no apparent error on record so as to exercise review

jurisdiction.

12. Inviting attention of this Court to paragraph no. 3 of

the order under review, the learned counsel would submit

that the learned counsel for the respondent-University on

obtaining instructions from the University submitted that

the case of the petitioner is identical to that of petitioner in

W.P. No. 18069/2006 and on the said submission writ

petitions were disposed off. In that circumstances it is

submitted that the respondent-University now cannot say

that the case of the petitioner is not identical to that of

petitioner in W.P. No. 18069/2006. It is her submission

that the review petition is filed only to harass the

petitioners.

13. Learned counsel would rely upon the decision of the

apex Court in the case of Kamalesh Varma vs.

Mayavathi & Ors. reported in (2013) 8 SCC 320 and

Haridas Das vs- Smt. Usha Rani Banik & Ors reported

in AIR 2006 SC 1634 to contend that it is not a case for

review. Learned counsel also submitted that on merits

also the review petition would not be maintainable.

14. It is submitted that the post of Instructors and

Workshop Superintendent are equivalent posts and which

is treated as equivalent to the cadre of Lecturers. Learned

counsel referring to Annexure-R1 order dated 04.10.2005

in W.P. No. 13203/2005 submitted that this Court relying

upon the decision in Dalappa Vs. Bangalore University

& Another reported in (2003) 6 KLJ 236 which was

affirmed by the Hon'ble apex Court, held that the

Instructor, Foreman and Workshop Superintendent are in

one hierarchy of teaching staff and they are declared as

equivalent to the post of Lecturers. In view of above,

learned counsel would submit that there is no ground to

review the order and the petitioners would be entitled for

AICTE pay scales. Thus she prays for dismissal of the

review petition.

15. On hearing the learned counsel and on careful

scrutiny of the material on record the only point which falls

for consideration is as to whether the order requires to be

reviewed as prayed for under Order 47 Rule 1 CPC?

16. The answer to the above point would be in the

affirmative for the following reasons.

17. Order 47 Rule 1 CPC provides for review of the

judgment on the ground stated therein, i.e., on the ground

of discovery of new and important matter or evidence

which after the exercise of due diligence was not within the

knowledge or could not be produced at the time when the

decree or order was passed or on account of some mistake

or error apparent on the face of the record or for any other

sufficient reason. One of the main ingredient of Order 47

Rule 1 CPC is that the person who seeks review shall point

out the error apparent on the face of the record or any

other sufficient reason which goes to the root of the matter

to get the review of the judgment or order.

18. The Hon'ble apex Court in a decision reported in

(2005) 4 SCC 741 in the case of BCCI vs. Netaji

Cricket Club at paragraph no. 90 with regard to sufficient

reason occurring in Order 47 Rule 1 CPC, it is held as

follows:

"Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefore. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 of the Code are wide enough to include a misconception of fact or law by a Court or even an advocate. An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit."

19. The Madras High Court in Shanmugam Servai v.

Periyakaruppan Servai reported in AIR 1996 MADRAS

411 has explained at paragraph no. 5 the expression 'any

other sufficient cause occurring in 'Order 47 Rule 1 CPC',

which reads as under:

"The expression, "any other sufficient cause" found in Order 47 Rule 1 must be interpreted to mean a reason sufficient or ground at least analogous to those specified immediately before. It must be ejusdem generic to the reasons previously stated. There is a difference between the words, 'ejusdem generis' and 'at least analogous'. The Lation phrase ejusdem generic according to the Chambers Twentieth Century Dictionary means, 'of the same kind'. The word analogous means bearing same; corresponds with or resembles to, similar in certain circumstances or in relation. So, the phrase 'ejusdem generis' is more restricted than the word, 'analogous'. The popular meaning of the word 'ejusdem generis' is, it is a rule of legal construction that general words following enumeration of particulars are to have their generality limited by reference to the preceding particular and to be construed as including only after argicles of the like nature and quality."

20. A reading of the above two decisions it is clear that

not only on the ground of error apparent on the face of the

record, but for any other 'sufficient reason' the Court which

passed the judgment or order could review the judgment

or order. What would constitute sufficient reason would

depend on the facts and circumstances of the case.

Sufficient reason must be such that on the face of it, one

should be able to understand miscarriage of justice.

21. In the case on hand admittedly the issue as to

whether the petitioners would be entitled for extension of

AICTE pay scale is not decided on merit. The writ petition

is disposed of on the submission of the learned counsel

that the issue involved in the writ petition is identical to

that of W.P. No. 18069/2006, but factually it is not so.

The petitioners in the writ petition were working as

Instructors and they had qualification of pass in SSLC and

fail in 7th standard respectively. Admittedly the petitioners

were working in the technical wing of the University which

requires technical qualification. Appendix to letter bearing

No. E.6-1/88-T.5, dated 28.02.1989 of Government of

India produced along with memo dated 18.12.2021

prescribes qualification of 1st Class Bachelor's Degree in

appropriate branch of Engineering Technology. The

petitioner in W.P. No. 18069/2006 was working as

Foreman and possessed qualification of diploma in

Mechanical Engineering. The petitioners cannot claim that

they are identically situated as that of the petitioner in

W.P. No. 18069/2006, since they do not possess the

qualification as possessed by the petitioner in W.P. No.

18069/2006 as well as they were not in the cadre of

Foreman.

22. The submission of the learned counsel for the

University in the writ petition to the effect that "on

instructions that the matter is identical" is on

misconception and when compared to the qualification and

post held by the petitioners as well as the petitioner in

W.P. No. 18069/2006 it can be safely concluded that they

are incomparable or in other words, the petitioners cannot

claim parity. It was for the petitioners to establish that on

the qualification that they possess they would be entitled

for extension of AICTE pay scales. Without establishing

the entitlement based on the qualification and the post

held by them, the petitioners cannot claim parity with the

petitioner in W.P. No. 18069/2006. Thus, not deciding the

entitlement of the petitioners and disposing of the writ

petition only on the concession of the learned counsel for

respondent would be an error apparent on the face of the

record and also would fall within the meaning of 'any other

sufficient reason' under Order 47 Rule 1 CPC so as to

review the order.

23. The learned counsel for the respondents contended

that the posts of Foreman, Instructor and Workshop

Superintendent are treated as Lecturer based on the

decision in Dalappa's case supra. It is seen that

Dalappa's case was taken to the Hon'ble Apex Court in

Civil Appeal No. 5620/2009 which was disposed of by order

dated 30.08.2017. The order of the apex Court reads as

follows:

"The respondents had superannuated in 2004 at the age of 60 years.

The controversy in this case is whether the respondents were holding teaching posts or not.

Since the respondents have superannuated several years ago, we are not inclined to proceed further with these matters.

Accordingly, the appeals are disposed of. However, the question of law raised by the appellant is left open for consideration in an appropriate case."

A reading of the above decision of the Hon'ble Apex Court

in the case of Dalappa (supra) reveals that the Apex

Court recorded the controversy, i.e., as to whether the

respondents were holding the teaching post or not.

Thereafter, since the respondent-Dalappa had

superannuated, it kept the question of law raised by the

appellant open for consideration in an appropriate case

and disposed of the appeal. In other words, the Apex

Court kept open the question as to the respondents

therein, i.e., Dalappa, was holding teaching post or the

post held by him was a teaching post to be decided in an

appropriate case. In other words, the question as to

whether the post of Instructor is a teaching post or not, is

not decided. The question as to whether the post of

Instructor with the qualification the petitioners possessed

could be considered as teaching post and whether they

would be entitled for extension of AICTE pay scales

requires to be decided on merit.

24. The Hon'ble Apex Court in Director of Elementary

Education, Odisha and Ors. V. Pramod Kumar Sahoo

(AIR 2019 SC 4755), considering identical fact situation

held that concession by State counsel was concession in

law and contrary to the statutory rules, such concession is

not binding on the State for the reason that there cannot

be any estoppel against law. The respondent in the said

case joined service as Primary School Teacher with

qualification of intermediate and had appeared for B.A.

Examination and in the Pay Scale of untrained Teachers.

Under the relevant rules therein had prescribed a separate

scale of pay for Trained Matric Teachers and non-Trained

Metric Teachers. Respondent claimed that he is entitled to

pay scale of Trained Metric Teacher even though he was

untrained. He approached Tribunal on the ground that as

he is intermediate, he is to be treated as a Trained

Teacher. Before the Tribunal appellant-State counsel

conceded that the Teachers having intermediate

qualification are entitled to the Scale available to Trained

Teachers. Challenging the same the appellant-State filed

application which was dismissed observing remedy is to file

review. Thereafter review was filed, which was also

dismissed on laches as well as observing that there is no

error apparent on the face of the order. Writ petition filed

thereafter, which was dismissed. In the above factual

position, the Hon'ble Apex Court at paragraph nos. 9, 10

and 11 has held as follows:

"9) On the other hand, it is argued that since the respondent is possessing higher qualification and is now graduate, therefore, he is entitled to the pay scale meant for Trained Matric Teachers and that State is bound by the concession given by its counsel before the Tribunal.

10) We have heard learned counsel for the parties and find that the distinction between Trained Matric Teacher and Untrained Matric Teacher has not been appreciated

by the Tribunal and the same error was committed by the High Court as well.

11) The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific Grade of Pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant."

The Principles and ratio laid down in the above decision

would squarely apply to the facts of the present case. It is

observed in the above decision that State counsel

concession in law and contrary to the statutory rules,

would not be binding on the State since there cannot be

estoppel against law.

25. The decision relied upon by the learned counsel for

the petitioners would not assist the petitioners in any way

in view of the peculiar facts of the present case, since this

Court has come to the conclusion that the petitioners are

not similarly situated as that of the petitioner in W.P. No.

18069/2006.