Meghalaya High Court
Shri Surajul Islam Kazi And Anr vs The State Of Meghalaya And Ors on 2 June, 2015
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
Review Petition No.1/2015
In W.P. (C) No.25/2012
1. Shri. Surajul Islam Kazi,
S/o (L) Nur Mohammad Kazi,
R/o Phershakhandi village,
West Garo Hills District, Meghalaya.
2. Shri. Ahmad Ali,
S/o Momuruddin S.K.
R/o Phershakhandi village,
West Garo Hills District, Meghalaya. :::: Review Petitioners
- Vs -
1. The State of Meghalaya represented by the
Commissioner & Secretary, Community & Rural
Development, Shillong.
2. The Deputy Commissioner/District Programme Co-ordinator of
Mahatma Gandhi National Rural Employment Guarantee
(M.G.N.R.E.G.S.) Scheme, West Garo Hills District, Meghalaya.
3. The Block Development Officer/Programme Officer,
Selsella Block, West Garo Hills District, Meghalaya.
4. Shri. Saiful Islam,
S/o Shri. Shukur Ali,
R/o Phershakhandi village,
West Garo Hills District, Meghalaya.
5. Shri. Bahadur Rahman,
S/o Shri. Zuhmul Haque,
R/o Phershakhandi village,
West Garo Hills District, Meghalaya.
6. Smti. Anjuwara Begum,
W/o Shri. Sadibur Rahman,
R/o Phershakhandi village,
West Garo Hills District, Meghalaya.
7. Phershakhandi Village Employment,
Phershakhandi village,West Garo Hills District,
Meghalaya.
8. Smti. Moksena Begum,
D/o Md. Abdul Gobber Shah,
R/o Phershakhandi village,West Garo Hills District,
Meghalaya. :::: Respondents
Page 1 of 7
9. Shri. Raiful Islam,
S/o Shri. A.Q. Mondal,
R/o Phershakhandi village,
West Garo Hills District, Meghalaya.
10. Shri. Jala Hussain,
S/o Shri. Siddik Ali,
R/o Phershakhandi village,
West Garo Hills District, Meghalaya.
11. Shri. Shobulal SK,
S/o Shri. Abdul Bafen SK,
R/o Phershakhandi village,
West Garo Hills District, Meghalaya.
12. Smti. Anjuaktra Begum,
W/o Amzed Hussai,
R/o Phershakhandi village,
West Garo Hills District, Meghalaya. :::: Proforma Respondents
BEFORE
THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH
For the Review petitioners : HL Shangreiso, Adv,
For the respondents : Mr. ND Chullai, Sr. GA,
Mr. H Kharmih, GA for respt.No.1-3
Date of hearing : 02.06.2015
Date of Judgment : 02.06.2015
JUDGMENT AND ORDER(ORAL)
Heard Mr. HL Shangreiso, learned counsel for the review
petitioners and Mr. ND Chullai, learned Sr.GA assisted by Mr. H Kharmih,
learned GA appearing for the respondents No.1-3.
2. By this review petition, the review petitioners are seeking for
review of the judgment and order of this Court dated 30.01.2014 passed in
WP(C)No.(SH)25/2012 wherein and where-under, the State respondents are
directed to hold the election of the Phershakhandi VEC in accordance with
the rules and procedures for election of President, Secretary and Women
member of the Phershakhandi VEC as provided under the Meghalaya Rural
Employment Guarantee Scheme (MREGS), 2006 notified vide notification
Page 2 of 7
No.CDD.122/2006/3 dated Shillong, the 28th July, 2006. This Court passed
the said judgment and order dated 30.01.2014 considering that the term of
the EAC members will be one year under Para 7 of the said Scheme, 2006.
3. In the review petition, the review petitioners are seeking for
review of the said judgment and order of this Court dated 30.01.2014 on the
ground that at the time of passing the said judgment and order dated
30.01.2014, the term of the VEC members was not one year inasmuch as by
the notification being No.NREGS Cell.19/2010/66 dated Shillong, the 23rd
March, 2010, Para 7 had been amended to the extent that the term of the
AEC and VEC members will be three years. The relevant portion of the said
notification dated 23.03.2010 is quoted hereunder:-
"PART - IIA
GOVERNMENT OF MEGHALAYA
COMMUNITY AND RURAL DEVELOPMENT DEPARTMENT
SHILLONG NREGA - CELL
ORDERS BY THE GOVERNOR
NOTIFICATION
The 23rd March, 2010
No. NREGS Cell.19/2010/66. - In exercise of the powers
conferred by sub-section (1) of Section 4 of the National Rural
Employment Guarantee Act, 2005, the State Government
hereby makes the following amendments further to amend the
notification of the Government of Meghalaya, Community &
Rural Development, published in the Gazette of Meghalaya,
Extraordinary vide number CDD.122/2006/3 dated 28th July,
2006 namely:
In the said notification:
***** ***** ***** *****
(iv) against Para 7B Clause 7, the term of AEC and VEC
members will be three years.
***** ***** ***** *****"
Page 3 of 7
4. It is clear from the pleadings in the review petition that in
pursuance of the said judgment and order dated 30.01.2014, the BDO &
Programme Officer, MGNREGS, Selsella C&RD Block also issued the order
dated 07.03.2014 that the election in democratic way will be held on
10.03.2014. The said order of the BDO & Programme Officer, MGNREGS,
Selsella C&RD Block dated 07.03.2014 (Annexure-B to the review petition) is
quoted hereunder:-
"GOVERNMENT OF MEGHALAYA
OFFICE OF THE BLOCK DEVELOPMENT OFFICER: SELSELLA C&RD BLOCK,
WEST GARO HILLS
MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME,
MEGHALAYA.
No.SEL.125/NREGS/ORDER/2012-13/925 Dated Selsella the 7th March, 2014.
ORDER
In pursuance of order No.Sel.125/NREGS/Order/2012-13/906 dated Selsella the 27th Feb. 2014. Election of Pershakhandi VEC will be held at Pershakhandi Govt. L.P. School on 10 th March at 10: A.M., therefore all the candidates and Original Job Card Holders of Pershakhandi are requested to reach the venue at 9:30 A.M. with jobcards. Photostat/scanned copy of jobcards, Old jobcards and jobcards without signature of Authority will not be allowed. Election will be in democratic way Shri. Karimul Islam Gram Sevak of Bhaitbari G.S. Circle and Shri. Abdus Siddique Sarkar, Technical Asst. will make all the arrangement for the Election.
Following Staff will represent undersigned during election and submit the report.
1. Shri. Grenier G. Momin, APO Selsella.
2. Shri. Tengsrang M Sangma, APO Selsella.
3. Shri. Karimul Islam, Gram Sevak, Bhaitbari GS Circle
4. Shri. Abdus Siddique Sarkar, Technical asst. Bhaitbari GS Circle
5. Shri. Rofigul Islam, Coordinator Pershakhandi.
(Dr. D. Roy) BDO & Programme Officer, MGNREGS, Selsella C&RD Block"
5. The result of the election of Pershakhandi VEC conducted on 10.03.2014 had also been declared and new committee of Pershakhandi Page 4 of 7 VEC had been constituted vide order of the BDO & Programme Officer, MGNREGS, Selsella C&RD Block dated 12.03.2014 (Annexure-C to the review petition) and it reads as follows:-
"GOVERNMENT OF MEGHALAYA OFFICE OF THE BLOCK DEVELOPMENT OFFICER: SELSELLA C&RD BLOCK, WEST GARO HILLS MAHATMA GANDHI NATIONAL RURAL EMPLOYMENT GUARANTEE SCHEME, MEGHALAYA.
No.SEL.1/Appt/NREGS/2012-13/934 Dated Selsella the 12th March, 2014.
ORDER In pursuance to the Election result of Pershakhandi VEC conducted on 10th March, 2014 as per judgment order of the Hon'ble High Court of Meghalaya, Shillong following persons are hereby approved as a new committee of Pershakhandi VEC by the undersigned.
1. Shri. Sirajul Islam Kazi - President
2. Shri. Ahmad Ali - Secretary
3. Smti. Anzowara Bibi - Women Member (Dr. D. Roy) BDO & Programme Officer, MGNREGS, Selsella C&RD Block"
6. From the submissions of the learned counsel appearing for the parties and also on perusal of the said notification dated 23.03.2010, it is clear that the term of the AEC and VEC members under Para 7 of the Meghalaya Rural Employment Guarantee Scheme (MREGS), 2006, had already been amended at the time of passing the said judgment and order dated of this Court dated 30.01.2014. Mr. HL Shangreiso, learned counsel for the review petitioners forcibly contended that this Court had no knowledge of the said notification of the Govt. of Meghalaya dated 23.03.2010 wherein and where-under, the term of the AEC and VEC is three years at the time of passing the said judgment and order dated 30.01.2014 and therefore, the judgment and order of this Court dated 30.01.2014 is required to be reviewed. This Court is of the considered view that the said Page 5 of 7 ground is a very good ground for reviewing the said judgment and order dated 30.01.2014 and also that had the said notification of the Govt. of Meghalaya dated 23.03.2010 been brought to the notice of this Court, this Court would not have passed the judgment and order dated 30.01.2014 taking the term of the AEC and VEC members is only one year. As stated above, the judgment and order of this Court dated 30.01.2014 had already been acted upon. The Apex Court in State of Nagaland v. Toulvi Kibami & Anr: (2003) 8 SCC 671 held that review petition will not be maintainable if the judgment and order to be reviewed had already been acted upon. Paras 1, 2 & 3 of the SCC in Toulvi Kibami's case (Supra) read as follows:-
"1. In the State of Nagaland, the promotion of Superintendent Engineer to the post of Additional Chief Engineer in the Department of Public Health and Engineering is governed by the service rules known as Nagaland Engineering Services Rules, 1977 (Class I & II) (hereinafter referred to as "the Rules"). The Respondent 2 in C.A. No. 2533 of 1998 (and the appellant in C.A. No. 2536 of 1998) is a diploma-holder and at the relevant time was working as officiating Superintendent Engineer. On 26.3.1991, the Government of Nagaland promoted respondent 2 as Additional Chief Engineer. This promotion was challenged by respondent 1 who is a degree- holder by means of a petition under Article 226 of the Constitution on the ground that respondent 2 was not eligible for being promoted to the post of Additional Chief Engineer as the said post is to be filled up 100 per cent from amongst the degree-holders. This contention of respondent 1 was accepted by the learned Single Judge of the High Court. Consequently, the promotion of respondent 2 was set aside. Aggrieved, the State of Nagaland preferred a letters patent appeal which was allowed and the order and judgment of the learned Single Judge was set aside. The Division Bench while allowing the appeal directed the State Government to decide whether the diploma-holders could also be promoted to the post of Additional Chief Engineer under the relevant Rules on the basis of they having rendered meritorious service. It is not disputed that consequent upon the direction of the High Court, the Government took a decision in the year 1997 whereby the Government appropriately amended the relevant Rules on the basis of they having rendered meritorious service. It is not disputed that consequent upon the direction of the High Court, the Government took a decision in the year 1997 whereby the Government appropriately amended the relevant Rules and brought them in the line with the original approved Rules so as to include the reference to eligibility of cases of exceptionally meritorious person who are diploma-holders for promotion to the post of Additional Chief Engineer with retrospective effect Page 6 of 7 i.e. from 12.9.1996. In that view of the matter, respondent 2 was promoted to the post of Additional Chief Engineer. In between time, respondent 1 filed an application before the Division Bench for review of the order and judgment dated 4.9.1995. The Division Bench allowed the review petition and dismissed the appeal. It is against the said judgment and order of the High Court dated 8.1.1998, the appellants are in appeal before us.
2. Having heard learned counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by respondent 1 was not maintainable. In fact the judgment of Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained and decided on merits.
3. For the aforesaid reasons, we set aside the order and judgment under challenge. The appeals are allowed. However, it will be open to respondent 1 to challenge the promotion of respondent 2 afresh by a separate petition under Article 226 of the Constitution of India if he is so advised. In case such a petition is filed, it shall be entertained and decided on merits. We leave all questions of law open to be decided in that case."
7. In view of the decision of the Apex Court in Toulvi Kibami's case (Supra), the present review petition is not maintainable. However, as held in Toulvi Kibami's case (Supra), the review petitioners may file afresh petition under Article 226 of the Constitution of India, if they are so advised. In the peculiar facts and circumstances of this case, the court is to make an observation that the term of AEC and VEC members will be three years pursuant to the said notification of the Govt. of Meghalaya dated 23.03.2010.
8. In view of the above, this review petition is disposed of.
JUDGE Lam Page 7 of 7