Dr. Bhabeshwar Tongbram vs Shri Rajkumar Nando Singh, & Ors

By filing this Review Application, the judgment and order passed by the Division Bench on 12.9.2016 in W.A.No.56 of 2016 affirming the judgment and order dated 14.6.2016 passed by the learned single Judge in WP(C) No. 215 of 2016 holding therein that the petitioner(respondent in the writ application) on account of not having Ph.D in the subject of Engineering and also not having requisite administrative experience of 3 years as Head of Department( for short HOD), is not eligible to be appointed on the post of Principal, Government Polytechnic, has been sought to be reviewed.

Before adverting to the submissions advanced on behalf of the petitioner (appellant in the writ appeal) and also on behalf of the respondent (writ petitioner), the facts giving rise to this Review Application need to be taken notice of. When the post of Principal of Government Polytechnic fell vacant, the state instead of making appointment on the said post on regular basis, appointed the petitioner (respondent in the writ application) as in-charge Principal Govt. Polytechnic vide its order dated 29.2.2016. The said order was challenged by the writ petitioner (herein respondent) on the ground that though the petitioner does possess Ph.D, an essential qualification for being appointed to the post of Principal, but the said Ph.D has been awarded to the petitioner, in the subject of History by the Department of Social Science Manipur University and not in any subject relating to engineering and also on the ground that the petitioner never acquired 3 years administrative experience as HOD. The petitioner contested the case and took a plea that whether the petitioner does have a requisite Ph.D. or not it should be left open for the Board of Governors to decide it.

Learned Single Judge, having taken into account the claim and counter claim, was pleased to hold that the petitioner (respondent in writ application) neither does have requisite Ph.D. in the subject of engineering, which in terms of the eligibility was required to have, nor does have 3 years administrative experience as HOD and thereby found the petitioner ineligible to be appointed on the post of Principal, Govt. Polytechnic. Accordingly, the order under which the petitioner had been appointed as in-charge Principal Government Polytechnic was quashed. At the same time it was also held that the writ petitioner is also not eligible to be appointed on the post of Principal. However, it was observed that on account of the administrative exigency if the authority do consider that there has been no way out but to appoint a person as Principal in-charge, then authority must take into account the seniority while appointing a person as in-charge Principal and thereby writ application was allowed vide its order dated 14.6.2016. That order was challenged before the appellate court. Before the appellate Court, the same plea was advanced on behalf of the appellant (petitioner of the review application) that the learned single Judge should not have decided the issue as to whether the petitioner is eligible or not to be appointed as Principal on account of not holding Ph.D. in the field of Science but holding Ph.D in related subject rather it should have been left open for the BOG to decide the matter relating to eligibility. The aforesaid submission advanced on behalf of the petitioner did not find favour as the appellate court did hold that the point as to whether the petitioner was having valid Ph. D or not, is to be determined in the context of the eligibility prescribed by the AICTE which never involves any detailed examination or scrutiny by an expert body and thereby upon examining the matter it was found that the petitioner is not holding Ph.D in engineering and thus the finding recorded by the learned single Judge was affirmed and the writ appeal was dismissed.

Being aggrieved with that judgment, the petitioner moved before the Hon''ble Supreme Court by filing SLP(C) No.32434/16 which, according to the learned counsel appearing for the petitioner, was disposed of giving liberty to the petitioner to file the Review Petition before this Court when Hon''ble Supreme Court did find that the point on which order passed by this Court is being assailed, had not been raised before this Court. This is how the Review Application has been filed.

It was submitted by Mr.Singh, learned counsel for the petitioner that the petitioner a Ph.D holder having degree of Master in engineering and teaching experience of 25 years in engineering colleges as well as technical Institutes has been fulfilling requisite qualifications prescribed by the AICTE for appointment on the post of Principal in Government Polytechnic. In this regard, it was submitted that the petitioner had been awarded Ph. D on the subject of "traditional housing and architecture of Manipur" by Faculty of Social Science, Manipur University levelling the subject as History and thereby the learned single Judge, keeping in view eligibility prescribed, did hold that the petitioner does not have Ph.D in engineering and at the same time it was also held that the petitioner does not have 3 years administrative experience as HOD. On account of that it was held that the petitioner is ineligible to be appointed as Principal of Government Polytechnic which finding was affirmed by the appellate court, though the court should have left the matter relating to eligibility to be decided by BOG in terms of the Regulation named as All India Council for Technical Education (clarification on certain issues/ anomalies pertaining to Qualifications, Pay scales, Service conditions, Career Advancement scheme(CAS)etc for teachers and other academic staff of technical Institution (Degree/Diploma) 2016, wherein clause 5 and 7 do stipulate that appropriateness of Ph.D. acquired from inter-disciplinary centre as well as appropriateness in relevant discipline in which faculty has acquired BE, B.Tech, M.E., M.Tech/ Ph.D, is to be decided by the Board of Governors on the basis of recommendation of properly constituted selection committee. But the Court, instead of referring the matter to the BOG, decided the issue of eligibility by holding that the petitioner is not a Ph.D holder in the discipline of engineering though in terms of clause 7 of the said regulation even Ph.D holder of other discipline than the core branches can be eligible if it is found equivalent and appropriate to M.Tech and Ph.D. by the BOG. Further submission which was advanced is that the court at the same time also held that the petitioner does not have administrative experience as HOD which was also wrong in view of the clause 62 of the said regulation which does stipulate that while considering the matter relating to administrative experience, teaching experience of the person should be taken into account.

Learned counsel fairly submits that at both the stages the aforesaid regulation could not be placed, as a result of which the aforesaid finding was recorded against the petitioner and thereby the petitioner has been visited with grave injustice as the petitioner in view of the said finding would never be considered for appointment on the post of Principal though in terms of the regulation he can easily be said to be eligible to be appointed on the post of Principal and thereby if the orders passed by the learned single Judge and also by the appellate court remain intact, the future of the petitioner would be doomed and would suffer injustice throughout his life and therefore it is fit case for review of the order passed by this Court. Learned counsel, by referring to decision rendered in case of S.Bagiathi Anmal vs. Palani Roman Catholic Mission (2009) 10 SCC 464 submits that not only on the ground of existence of error apparent on the face of record an application for review is maintained but it can also be maintained if the same is necessitated on account of some mistakes or for any other sufficient reasons.

As against this Dr. RK Deepak, learned counsel appearing for the respondent(writ petitioner) submitted that as per the eligibility prescribed for appointment on the post of Principal, Government Polytechnic, one should be Ph.D in the subject of engineering but admittedly the petitioner has been awarded Ph.D in the subject of history by the Department of Social Science, Manipur University and thereby upon bare perusal of the provision relating to eligibility if one finds that the person is not a Ph D on the subject of engineering, it would be unnecessary on the part of the Court to refer the matter to BOG as it never involves any detail inquiry or scrutiny and therefore if the learned single Judge upon considering the plea of the petitioner in the context of the provision relating to the eligibility has recorded about ineligibility of the petitioner for appointment on the post of Principal which order has even been affirmed by the appellate Court, the order cannot be said to have been suffering from any error apparent on the face of record. The learned counsel, in this regard, has further highlighted that admittedly the petitioner has been awarded Ph.D on the subject of History by the Department of Social Science, Manipur University on the subject which though related to housing and architecture but it cannot in any view of the matter, be said to be Ph. D in engineering and under the circumstances impugned order cannot be said to have been suffering from error apparent on the face of the record and if it is not, the Review Application cannot be maintained in view of the decision rendered in the case of Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury reported in AIR 1995 SC 455 and also in view of the decision rendered in the case of M/s Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi reported in AIR 1980 SC 674 . Having heard learned counsel appearing for the parties and on perusal of the record, it be recorded at the cost of repetition that when the petitioner was appointed as Principal in Government Polytechnic as in-charge, his appointment was challenged in a writ application. The learned single Judge, did take into account the notifications dated 5.3.2010 as well as 4.1.2016 prescribing eligibility for the appointment on the post of Principal. It read as follows:

"Notification Dated 05.03.2010.

Principal

Qualification as above for the post of Head of Department and Ph.D in Engineering. OR Qualification as above for the post of Head of Department

Minimum of 10 years relevant experience in teaching/Research/Industry out of which at least 3 years shall be at the level of Head of Department or equivalent. In case of Architecture, professional practice of 10 years as certified by the Council of Architecture shall also be considered valid.

"Notification Dated 04.01.2010.

48 Whether a faculty of Engineering & Technology with minimum 10 years relevant experience in teaching/ research out of which 3 years is in the same grade pay (i.e. Rs.9000) at par with HOD is eligible for the post of Principal in Polytechnic. Yes, provided the person also has an administrative experience of at least 3 years.

64 Whether Ph.D is an essential qualification for the post of Principal in Diploma Level Technical Institutions Yes

The learned single Judge, after having regard to the said notification laying down the criteria for appointment to the post of Principal was pleased to hold that the petitioner is not eligible to be appointed on the post of Principal, Government Polytechnic as he does not have Ph D in engineering rather he has been awarded with Ph.D on the subject of History by Manipur University and at the same time it was also held that petitioner does not have 3 years administrative experience as HOD. The finding recorded was affirmed by the appellate court. The order passed by the learned appellate court was challenged before the Hon''ble Supreme Court by way of S.L.P. which, however, was permitted to be withdrawn with liberty to file a review petition as it seems that the points which was raised before the Hon''ble Supreme Court had never been raised before this Court.

Now, by filing Review application, order passed by the appellate court affirming the judgment and order passed by the learned single Judge holding the petitioner to be ineligible to be appointed on the post of Principal, is being sought to be reviewed on the ground that that Ph D awarded to the petitioner by the faculty of Social Science, Manipur University is on the subject of ''traditional housing and Architecture of Manipur'' which is equivalent to Ph. D awarded in engineering appropriateness of which is required to be considered by the BOG upon recommendation being made by a Selection committee which exercise is supposed to be undertaken by the BOG in view of the clarification made under clause 5 and 7 of the Regulation called as, All India Council for Technical Education (clarification on certain issues/ anomalies pertaining to Qualifications, Pay scales, Service conditions, Career Advancement scheme(CAS)etc for teachers and other academic staff of technical Institution (Degree/Diploma) 2016, relevant clause 5 and 7 reads as follows:

5 Clarification in respect of Ph.D acquired from inter-disciplinary Centres/Departments in relevant area for the appropriateness in relevant discipline in which faculty has acquire d BE/ B.Tech. and ME/M.Tech. Degree The BoG of the concerned Institute on the basis of the recommendations of properly constituted Selection Committee and with the approval of their State Technical Education Department/ State / UT/ Central Government/ University may take appropriate decision.

Clarification regarding appropriateness and equivalency of higher qualifications (M. Tech/ Ph. D) obtained in branches other than core branches of BE / B.Tech, for the purpose of CAS/ Promotion and direct recruitment. To be dealt as per issue No.5.

The learned counsel for the petitioner is fair enough to point it out that the said Regulation had never been placed either before the learned single Judge or the appellate court as a result of which learned single Judge as well as the appellate court had no occasion to examine the eligibility of the petitioner in the light of the aforesaid clauses which requires examination relating to appropriateness of the degree, Ph.D by the BOG. In this regard, submission has also been advanced that had the matter relating to appropriateness of Ph.D awarded by the Branches other than the core branch by Inter-disciplinary Centre been considered by BOG in the light of clauses 5 and 7, BoG may have come to another conclusion and could have found the petitioner to be eligible but since the Court has given its finding without taking into account the provisions of the Regulation 5 and 7, as referred to above, a grave injustice has occasioned whereby future of the petitioner has virtually been doomed as so long the finding relating to ineligibility of the petitioner will remain intact, petitioner could not be considered for promotion to the post of Principal.

In such situation, this Review application has been filed.

Thus, the question does arise as to whether order passed by the appellate court is fit to be reviewed in the facts and circumstances or not?

Before dealing with the fact of the case, we may refer to a decision rendered in a case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma reported in AIR 1979 SC 1047 wherein scope and parameter of the High Court relating to its power of review has been dealt with. Their lordships has observed in para 3 as follows:

"3. The Judicial Commissioner gave two reasons for reviewing his predecessors order. The first was that his predecessor had overlooked two important documents exhibits A/1 and A/3 which showed that the respondents were in possession of the sites even in the year 1948, 49 and that the grants must have been made even by them. The second was that there was a patent llegality in permitting the appellant to question, in a single Writ Petition settlement made in favour of different respondents. We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitute a ground for review. It is true as observed by this Court in Shivdev Singh and Ors. v. State of Punjab and Ors. AIR 1963 SC 1909 there is nothing in Article 226 of the Constitutence preclude a High Court from exercising the power of review which iuheram in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors committed by it. But, there are definitive limits to the exercise of power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due digilence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. "

We may, further, refer to a case decided in a case of M/s Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi reported in AIR 1980 SC 674 wherein it has been observed as follows:

"8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan.(1) For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment. G. L. Gupta v. D. N. Mehta.(2) The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O. N. Mahindroo v. Distt. Judge Delhi & Anr.(2) Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art. 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in XLVII rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility." Chandra Kanta v. Sheikh Habib."

On going through the aforesaid judgment, one may find that generally review application is entertained where it appears to the court that there has been error apparent on the face of the record but at the same time as has been observed by His Lordship the court may also reopen its judgment if manifest wrong has been done and it is necessary to pass order to do full and effective justice.

Coming back to the facts of the case, it be stated that had the Regulation been brought to the knowledge of the Court at the time of hearing of either writ application or appeal, chances of taking other view may not be ruled out. We are conscious of the matter that for entertaining new document at review stage, one should come with the case that in spite of due diligence the document never came to the knowledge but the fact is as such that if one declines to entertain this review application, there may be miscarriage of justice as both the courts in complete ignorance of the said Regulation has given finding relating to ineligibility of the petitioner by holding that the petitioner is not Ph.D. holder in subject of Engineering and that he lacks requisite experience of 3 years prescribed by AICTE but from perusal of the clauses 5 and 7 of the Regulation, as mentioned above, one having Ph.D not in core branch but other than the core branch even by inter-disciplinary centre may be eligible subject to condition that appropriateness and equivalency of it is found by BOG. Similarly, other eligibility of having 3 years administrative experience is to be determined in context of clause 62 of the said Regulation which speaks in the manner, "to consider experience in "educational administration" for the purpose of appointment of Principal/Director in technical institution." The eligibility prescribed as administrative experience of 3 years is to be determined in context of educational administration in terms of clause 62 of the Regulation.

Admittedly, finding recorded by the learned single Judge being affirmed by the appellate court relating to eligibility never happens to be in context of aforesaid clauses of Regulation and therefore if we will not be entertaining the Review application, a grave injustice would occasion to the petitioner as on account of the finding recorded as aforesaid over the eligibility it jeopardises the future of the petitioner. Accordingly the finding recorded over the eligibility of the petitioner on account of he being not the Ph D holder in engineering and lacks the administrative experience of 3 years by the learned single Judge affirmed by the appellate court, is hereby set aside/recalled. For the same reason, any finding given by the learned single Judge against the ineligibility of the respondent (writ petitioner) is also set aside so that the process of appointment of eligible person on regular basis on the post of Principal Government Polytechnic be undertaken.

Accordingly the respondent concerned is hereby directed to take steps for appointment on regular basis on the post of Principal so that it be completed within 3 months from the date of receipt of the copy of this order.

This Review Application stands allowed.