JUDGMENT

“actus curiae neminem gravabit”

A.K Banerjee, J.:— No litigant should suffer for the mistake on the part of the Court or his advocate. I wish to apply this doctrine to resolve the present controversy.

2. The writ petitioner was appointed as Assistant Teacher in language group on January 2, 1984 in Kadipukur Naskar High School in the District of 24-Parganas (South). This school was upgraded on May 1, 1992 after D.L.I.T inspection. The petitioner's name appeared not only in the D.L.I.T report but also in other official documents pertaining to the concerned school. After the school was upgraded all organizing staff were recognized by the State excepting the petitioner. He approached this Court by filing C.O No. 1425 (W) of 1995. This Court directed the District Inspector to consider his representation. The District Inspector after giving personal hearing to all concerned passed a detailed reasoned order on May 8, 1995 appearing at pages 19–24 of the writ petition.

3. Analysis of the speaking order of the District Inspector reveals the following:—

(i) Petitioner was an organizing staff and he was recognized by D.L.I.T as an Assistant Teacher in language group.

(ii) Although the petitioner was appointed in language group he was teaching English, Bengali, Sanskrit as well as P.T and Work Education.

(iii) He had the requisite qualification for being appointed as a teacher in language group having English (200 marks), Bengali (200 marks), Sanskrit (300 marks).

(iv) He was entitled to be approved as a language teacher in the vacancy occurred due to retirement of language teacher. He could also be absorbed in language group in place of the then teacher-in-charge Sri Bhowmik who was a language teacher studying B. Ed. for being appointed as Head Master for the concerned school in near future.

4. The District Inspector after considering the facts and circumstances passed an order approving his appointment as a teacher in Physical Education provisionally for a period of three years w.e.f February 3, 1995 on his undertaking to get himself passed through a training course in Physical Education within the said period. The District Inspector also observed that he could subsequently be absorbed in language group after Bhowmik was appointed as Head Master in near future. A formal approval was also issued by the District Inspector on August 7, 1995 as appears from Page 26 of the writ petition. The petitioner immediately applied to the school for necessary permission so that he could take the training of Physical Education for being absorbed permanently in the said post. The school authority refused to grant him permission in view of shortage of teaching staff.

5. There had been disputes with regard to running of the affairs of the concerned school, which resulted in appointment of administrator by the appropriate authority. The administrator by his order dated May 4, 1999 passed an order treating the petitioner in language group after completion of his B. Ed. course and sought permission for his study leave in B. Ed course from the concerned District Inspector. According to the writ petitioner, he duly got himself admitted in B. Ed. Course.

6. The said administrator passed another order on August 3, 2000 treating the writ petitioner as a language teacher and declaring the vacancy in physical education. The District Inspector was also approached for filling up the post of Assistant Teacher in Physical Education through School Service Commission. However, the post of physical education teacher is still vacant.

7. The writ petitioner continued to work as Assistant Teacher not only in language group but also in physical education. This continued up to 2003, the petitioner was paid regular salary admissible to an approved Assistant Teacher up to May, 2003.

8. In May, 2003 Drawing and Disbursing Officer was appointed by the appropriate authority under the State to release salary to the teaching and non-teaching staff. The said officer on scrutiny of the records found that there was no formal approval to the appointment of the petitioner and as such stopped payment of his salary. This gave rise to the present writ petition.

9. The State filed affidavit-in-opposition. The said affidavit-in-opposition was filed by the then District Inspector of School. In the affidavit, it was contended that as the petitioner did not complete the training course in physical education as per his undertaking within the stipulated period he was not entitled to be treated as a physical education teacher. Similarly as there was no approval for his service in language group he could not be treated as such.

10. The writ petition was moved before a learned single Judge of this Court. His Lordship directed the District Inspector to submit a report. The District Inspector submitted a report on the basis of the report of the Drawing and Disbursing Officer expressing his inability to release the salary to the petitioner for the reason mentioned above. The matter came up for final hearing before His Lordship. His Lordship by His Lordship's Judgment dated July 21, 2004 dismissed the writ petition. On perusal of His Lordship's Judgment and order, it appears to me that His Lordship was annoyed with the conduct of the case of the petitioner. The learned Advocate on record who appeared for the petitioner could not present the case properly. His Lordship, however, did not impose any cost although His Lordship observed that the case observed exemplary cost to be awarded as against the writ petitioner.

11. The main reasons for dismissal of the writ petition as appears in the said Judgment are as follows:—

(i) The writ petitioner was obliged to undergo training in physical education within three years, which he did not.

(ii) He could not be absorbed/regularized in language group as he did not have 300 marks in English and Bengali at the degree level, which was prerequisite for a teacher in terms of the circular issued by the State.

(iii) The writ petitioner suppressed material facts before His Lordship. The writ petitioner also falsely implicated the Drawing and Disbursing Officer with an allegation of unjust gratification.

12. The writ petitioner applied for review. As His Lordship by this time was transferred to another High Court, the review application came up for hearing before me having appropriate determination.

13. The review application was also filed by the same Advocate on record. The same was not in form. It was not drafted in the manner it was required. The writ petitioner had been most unfortunate having choosing an advocate who was not aware either of the procedural aspect or with the legal aspect. On plain reading of the Judgment, it appears to me that the case of the petitioner was not at all placed before His Lordship in the way it should have been. His Lordship was not told about the relevant circular applicable herein. It is true that in terms of the State circular dated March 13, 1992, a teacher must study the relevant subject with 300 marks at the graduation level for being appointed in such post for the relevant subject. The said circular was clarified by a subsequent circular being No. 334-E.D.N (S)/4A/5/92 dated April 2, 1993 wherein the candidates having passed in graduation (old course) having English and Bengali with 200 marks each would also be entitled to be considered for the post of Assistant Teacher even if they were not eligible under the earlier circular dated March 13, 1992. Hence His Lordship's Judgment to the extent that the petitioner was not entitled to be considered as a language teacher because of the circular dated March 13, 1992 was erroneous and this Court being a Court of record must correct its own mistake. On the physical education issue I find that the petitioner did apply for permission from the school to undergo such training as undertaken by him before the District Inspector. He was not permitted to do so as it appears from the pleading. Hence petitioner was prevented from undergoing such training. This issue was also not gone into by His Lordship as in my view the same was not drawn attention to His Lordship. Had it been so, the Judgment would have been otherwise.

14. Initially for the State Mrs. Ashalata Ghosh Advocate was appearing. Because of the complicated, controversy I directed Mr. Tapabrata Chakraborty learned Junior Advocate to appear in this matter for the State assisting Mrs. Ghosh. Mr. Chakraborty contended as follows:—

(i) The review application was not in form as contemplated in Chapter × Rule 2 of the High Court Rules (Appellate Side).

(ii) Even if it was held that the petitioner was entitled to be regularized, this Court was not competent to direct his regularization either in physical education group or in language group in view of the fact that the School Service Commission Act had come into effect w.e.f 1997 and no teacher could be appointed now without reference to School Service Commission.

15. In support of his contention Mr. Chakraborty relied on two decisions of this Court:—

(i) 2003 Vol-4, Calcutta High Court Notes. Page 255 (Bidya Devi v. Commissioner of Income Tax. Allahabad, State of U.P)

(ii) 2003 Calcutta Weekly Notes Page- 1001 (The Secretary, Vivekanandapally Kishore Bharati High School v. Munshi Mohammad Mansur).

16. In the first case, the Division Bench held that the issue brought in by the review applicant could not be considered as an error expressly apparent on the face of the record. The Division Bench also held that failure to consider written notes of argument later on filed after the hearing was concluded, could not be a ground for review.

17. In the second case myself speaking from the Division Bench after holding that the writ petitioner was wrongfully dealt with by the School Service Commission refused interference an the ground that the panel had lapsed in between and no relief could be given therefor.

18. Mr. Kashi Kanta Moitra learned senior counsel appearing for the review applicant on the contrary drew my attention to the Division Bench decision in the case of Sri Pintu Acharyya v. The State of West Bengal (1997 Vol-2 Page 248 Calcutta Law Journal) as well as the Apex Court decision in the case of Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 Supreme Court Cases Page-741. Paragraph 36 of the Division Bench decision being relevant is quoted below:—

“As Judgment regards maintainability of the review application filed by the respondents herein, Mr. Ray would submit that the subsequent events could not have been taken into consideration for the aforementioned purpose. It was urged that the order admitting the review application and the interim order passed by the Madras High Court is contrary to the relevant provisions of the Code of Civil Procedure (Code) and on a wrong understanding of the dispute relating to the Maharashtra Cricket Association.”

19. Similarly, the Apex Court observation in Paragraph 89–90 in the case of BCCI (supra) being relevant herein are quoted below:—

“Order 47 Rule 1 of the Code provides for filing an application for review. Such an application far review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

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”.

20. The scope of review as contained in Order 47 may not be strictly applicable in writ jurisdiction. However, this Court being a Court of record is also entitled to correct its own mistake as an when attention is drawn in that regard. This case is a glaring example of mistakes galore committed by the petitioner's own advocate. He could not present the petitioner's case properly before His Lordship. He did not draw the attention of His Lordship about the relevant circular applicable therefor, which resulted in miscarriage of justice as I have observed earlier. Had this case been placed before His Lordship properly, the Judgment would have been otherwise.

21. It is true that the review application was not in form as contemplated in the Appellate Side Rules of this Court. If I dismiss the application on this ground because of the fault on the part of the petitioner's advocate it would be a further miscarriage of justice. Sitting in writ Court being a Court of equity, it would not be proper for me to reject the application in limine on such technical flaw.

22. On merits I am convinced that the writ petitioner was denied justice. The writ petitioner was an organizing teacher; he was superseded at the time of regularization. His juniors were regularized. This Court directed the District Inspector to consider his case. The District Inspector in his well-reasoned order passed as per back in 1995 gave him the benefit. He also issued a formal order for approval to his appointment although provisionally for 3 years with a corresponding undertaking to have the training course in physical education completed by that time. The writ petitioner approached the appropriate authority for permission to undergo such training. He was not allowed. He should not be blamed for that. The administrator, another government officer passed an order shifting him to the language group possibly on the strength of the speaking order of the District Inspector wherein he observed that in near future he could be accommodated in language group after vacancy occurred in view of promotion of Bhowmik in the post of Head Master. The District Inspector continued to disburse salary for long 8 years. The writ petitioner understood that he was treated as regularized in language group. Sudden stoppage of his salary compelled him to again after 8 years.

23. The matter can be viewed from another angle. The petitioner was an organizing teacher. He was entitled to be regularized along with others, he was left out. This Court directed consideration. The District Inspector in 1995 granted him relief. He was treated as such for last 8 years. Sudden stoppage of salary that too without a regular proceeding giving him opportunity to defend himself was violative of principles of natural justice. Up till date, the State did not ask the petitioner to refund the salary paid after expiry of 3 years period. Hence it could also be assumed that there had been deemed approval of his appointment by the appropriate authority under the State. Today the post of language group as well as physical education group is still vacant. The petitioner was otherwise eligible to be regularized in language group by virtue of the State circular dated April 2, 1993. He was entitled to regularized from the day when others were regularized and hence the School Service Commission coming into force after 1997 cannot create any impediment for the writ petitioner as such. Similarly if the State wants him to be a physical education teacher on the basis of the provisional approval dated August 7, 1995 the State must give him appropriate opportunity to get himself trained as such. In any event, the writ petitioner at this stage in my view cannot be shown the exit door having no fault of him. The decision in the case of Secretary, Vivekanandapally Kishore Bharati High School (supra) cannot be made applicable in the instant case.

24. In the result, the review application succeeds. The judgement and order dated July 21, 2004 is recalled. W.P No. 17986 (W) 2003 is allowed. The State would continue to disburse salary from the stage when they stopped payment. The arrears salary must be disbursed to the petitioner within a period of two weeks from the date of communication of this order.

25. It is, however, open to the State to take a decision as to whether the petitioner would be considered as a language teacher or as a physical education teacher and in case of second eventuality, the petitioner must be afforded adequate opportunity to train himself as a physical education teacher within a sufficient time. The review application is disposed of without, however, any order as to costs.

26. The operation of this Judgment and order would remain stayed for a period of two weeks after long vacation.

Urgent xerox certified copy of this Judgment and order, if applied for, may be available to the parties on priority basis.

Application disposed of

S.B