Avik Chatterjee vs State of West Bengal & Ors

Rai Chattopadhyay, J

1) CAN 2 of 2024 is an application, filed by the State, to seek recall of this Court’s orders dated March 28, 2024 and April 5, 2024, in the writ petition No. WPA 12648 of 2018 [Avik Chatterjee vs The State of West Bengal].

2) Grounds of recall as made out therein are as follows:

a. The writ petitioner was appointed in the said minority institution, through direct recruitment, without taking prior approval from the Higher Education Department, Government of West Bengal;

b. The qualification required was ‘Graduate’, in violation of the Government Order No. 1077-Edn(CS) dated November 23, 1998, according to which the minimum qualification should be ‘Madhyamik’;

c. In the process Government Order No. 915-Edn(CS) dated November 19, 2007 and Government Order No. 887-Edn(CS) dated November 19, 2010, were flouted;

d. That  appointment  of  the  writ  petitioner  to  the  post  of ‘Cashier’, is dependent on availability of the post as a vacant one, which cannot be considered as such, unless the promotion of the present incumbent therein is approved by the authority; whereas the authority has rejected approval of such promotion of the other person due to the alleged violation of the notifications as mentioned above; that unless the post can be treated as vacant, the writ petitioner cannot be approved in service.

3) The writ petitioner has objected to the prayer of recall as above. A preliminary point of maintainability of the recalling application as above has been put forth. It is submitted that change of conducting advocate cannot be considered as a just ground to recall the order passed earlier. It is further submitted that the grounds pleaded touch the merits of the case, which is not to be considered again after final disposal of the writ petition; at best a fresh cause of action can be said to have arisen and nothing more. Also, that at the time of hearing of the writ petition the applicant/State has been granted ample opportunity and the Court has considered submissions of both the parties before coming to a conclusion vide the orders dated March 28, 2024 and April 5, 2024. Therefore, there would not be any scope in the guise of this recalling application, for reappreciation of the case on merits. In support, the writ petitioner has relied on the following judgments: (i) Tamil Nadu Electric Board & Another vs N.Raju Reddiar & Another [(1997) 9 SCC 736]; (ii) State of Uttar Pradesh vs Brahm Datt Sharma & Another [(1987) 2 SCC 179]; and (iii) Asit Kumar Kar vs State of West Bengal & Others [(2009) 2 SCC 703].

4) The maxim interest reipublicae ut sit finis litium says that it is for the public good that there be an end to litigation. At some stage, it is necessary to put a quietus. The law as to when can an order of the Court be recalled is well settled. Principles of finality is based on high principle of public policy. Recalling of an order of the Court should not be merely for rehearing of the matter and fresh decision. It would be permissible only under extremely compelling and exceptional circumstances. Although there can be no exhaustive list of such exceptional circumstances, certain circumstances may be mentioned as conducive for a recall application, like non-consideration of a material statutory provision, any manifest wrong or injustice seen to have been done, violation of the principles of natural justice and the applicant seen to have not been extended opportunity of hearing et cetra. An order of the Court can be recalled under specific circumstances where the order suffers from procedural illegality, lack of jurisdiction, fraud, collusion, mistake, or ignorance of material facts. Such recall is generally permissible when the order was obtained or issued in a manner that violates principles of natural justice or procedural fairness, or when the order is inherently void due to jurisdictional errors. Recall of an order generally pertains to the procedural errors or jurisdictional patent defects, not merits of a case. The power to recall is generally limited to procedural illegality, jurisdictional defects, or orders obtained by fraud. Orders based on merits or on questions of fact not involving procedural violations are not typically subject to recall.

5) Grounds of recall pleaded in the instant application have been mentioned earlier. Those are only touching the merits of the case and no procedural or jurisdictional error have been pleaded. The Court is constrained to find those not to have construed any compelling or exceptional circumstance, for which the Court may revisit its orders as stated above. That would amount to rehearing of the matter afresh, which is forbidden under the law. No issue is there as to the violation of the applicant’s right of hearing before the Court or non-consideration of any relevant statutory provision.

6) The judgments referred to on behalf of the writ petitioner as above is worth consideration in this regard. In the case of N.Raju Reddiar (supra), the Supreme Court has deprecated the practice of filing repeated petitions by changing the learned advocates to conduct the case. In Brahm Datt Sharma (supra) even subsequent change of event in connection with the subject matter of a disposed of writ petition has been held not sufficient to recall the Court’s earlier order. In the case of Asit Kumar Kar (supra), the Supreme Court has recalled its earlier order due to the fact that the applicant therein did not have an opportunity of hearing before the Court, when the matter was previously decided by the Court on merits.

7) Hence, no sufficient and cogent reason available in this case to warrant any interference by this Court as to its earlier orders dated March 28, 2024 and April 5, 2024.

8) The recalling application being CAN 2 of 2024, in connection with the writ petition No. WPA 12648 of 2018, is dismissed.

9) Urgent certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.